A federal appeals court on Oct. 8 enabled Ohio to enforce a law that bans foreigners from spending on ballot campaigns, reversing a ruling from a lower court.
The law does not violate the U.S. Constitution’s First Amendment because it is targeting a compelling interest and is narrowly tailored, a majority of a U.S. Court of Appeals for the Sixth Circuit panel ruled.
Under U.S. Supreme Court precedent, states have broad authority to protect elections from the influence of noncitizens, U.S. Circuit Judge Amul Thapar said for the majority.
State officials appealed to the Sixth Circuit, asserting they have a compelling interest in “preventing noncitizens from pouring money into Ohio’s elections.”
Thapar said that just because some lawful permanent residents can serve in the military, that “has no bearing on their constitutional status for purposes of campaign finance regulations.” He said that Ohio’s law properly covers noncitizens and is narrowly tailored to prevent influence from foreign nationals, dismissing concerns that it is overbroad.
Groups that sued over the law said it prohibited conduct like posting yard signs in favor of campaigns.
“That’s incorrect. Section 121 doesn’t bar anyone from posting yard-signs. It only applies to the purchase of a yard-sign. Thus, this provision plugs a loophole by which a noncitizen could, say, buy a yard-sign for $20,000 and circumvent Ohio’s other spending prohibitions,” Thapar wrote. “This prohibition doesn’t sweep too broadly. Ohio’s law still allows homemade yard-signs. And it allows a noncitizen to receive a yard-sign and place it on his lawn. At bottom, Ohio set out to prevent foreign influence in state elections by preventing foreign influence in state elections. Nothing could be more narrowly tailored.”
The appeals court could only interfere with the law if it violated the First Amendment, and it doesn’t, he added later.
U.S. Circuit Judge David W. McKeague joined the majority, which has stayed Watson’s preliminary injunction as the case proceeds.
U.S. Circuit Judge Stephanie Dawkins Davis said in a dissent that she would have kept the injunction in place because she believes the law is likely unconstitutional.
Legal permanent residents (LPRs) have constitutional rights and the law could still protect against foreign influence by targeting any foreign nationals who are not legal permanent residents, Davis said, pointing to federal laws that exclude LPRs.
“The fact that LPRs share in various rights and responsibilities with U.S. citizens speaks to the showing of proportionality required to justify the admitted incursion the law visits upon their First Amendment rights,” she wrote. “On that front, Ohio is unlikely to demonstrate that its addition of LPRs to the definition of foreign nationals is proportional to the interest being served.”
Thapar, responding to that point, said narrow tailoring “only requires the government to use the least restrictive means that still allow it to achieve its compelling interest.”
“Strict scrutiny doesn’t demand that the government sacrifice its compelling interest. We can’t invalidate a law because the government could’ve adopted a different approach that advances its compelling interest less effectively,” he said. “If the goal is to prevent foreign influence, extending the ban to all noncitizens (including lawful permanent residents) is the most effective means of advancing that goal. Congress was free to strike a balance that was less comprehensive for the sake of advancing other goals, such as honoring lawful permanent residents’ deep ties to the United States. Ohio is similarly free to strike its own balance.”
